Restraint

Entertainment isn’t what it used to be. Then again, it never is. Every new form of entertainment comes with new problems to solve– some of them logistical, some of them ethical, and some of them legal. Thus it is with the emerging form of the Let’s Play video– videos where players play through various games while commenting on the experience. These have become a steadily growing mainstay of video streaming sites such as youtube and are, along with competitive gaming coverage, the main reason for the existence of the streaming site twitch.tv.

Up until now, the questions of legality and ownership one might have over such a format haven’t really been forced, and the producers of the videos have happily taken whatever advertising profits are left over after the streaming site takes their cut. However, in the last week, Nintendo have begun claiming the advertising profits from let’s play videos featuring their games. They issued this statement to explain why:

“As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.”

This is, as far as I know, the extent of the explanation Nintendo have provided on the matter. Now, if you read that carefully, you might notice that they didn’t provide any explanation of why they chose to do what they did, just confirmed that they did it and followed it up with what looks vaguely like a threat suggesting that they could have done something much worse.

When confronted with the question, “should they have done that,” a question which seems to come up a lot in regard to intellectual property concerns, I think it’s useful to consult with my acronymic friend LEW. LEW asks:

1. Was it Legal?
2. Was it Ethical?
3. Was it Wise?

So let’s look at Nintendo’s actions from that perspective.

First: Was it legal? This is actually kind of shakey, and some have hypothesized that this very shakiness may be why Nintendo is testing the ice, in order to set a precedent for future cases with higher stakes. I’m not a legal expert by any means, but up until now Let’s Plays have been popularly regarded as transformative works and thus believed to be protected by fair use laws– the way things are going, it looks like before too long we may find out whether the courts agree. Or, perhaps, this may be resolved by another branch of the government, as congress begins investigating copyright reform. We shall see. Either way, this is an open question– for now.

Second: Was it ethical? Considering that these are solitary entertainers, trying to scrape together a living, having substantial chunks of their income taken by an international corporation, I would suspect that the answer is no, but let’s dig a bit deeper. The first point that should be established is that some of these Let’s Players do this as a full-time entertainment job– these videos, as well as other online video content, are becoming increasingly popular entry points for people who would have pursued careers in radio and television in the past. And, just as with radio and television, the fields are littered with people who tried and who couldn’t make it work, who either end up finding work elsewhere or doing it just as a hobby– for many people that’s all it ever was. My point here is twofold, though: First, it’s a tough gig, and the people who make it work as a job need all the support they can get, so being undermined like this is a slap in the face. Second, if the main draw of the videos was the game, individual talent wouldn’t matter and you’d see a roughly even distribution of viewers: This is not the case. These people are entertainers.

I guarantee you that if John Williams grabbed the money from a street musician’s tip jar because the musician dared to play the Cantina theme from Star Wars, people wouldn’t find that ethical. If a bunch of guys recorded themselves bullshitting at a party and it became a youtube sensation, the NFL would not be entitled to all of their ad revenue just because it was a Superbowl party. If a standup comedian does a set wearing a T-Shirt with a picture of Bart Simpson, Fox does not get to claim the ticket fees.

Oh, drat. I’ve let the legal argument get into my ethical argument, haven’t I? Well, that’s because the legal issue also raises the question: If it is legal, should it be legal? I kind of wanted to include that question, actually, but it makes it a lot harder to come up with a snappy acronym. Oh well.

Moving along, then. Third: Is it wise? Well, let’s see, Nintendo just released their biggest flop of a console since the Virtual Boy and are desperate for any advertisement or positive word of mouth they can get. Litigating against your fans is a lousy idea at the best of times, but worse timing on this is difficult to conceive. At this rate, even if they come out with an amazing first party title for the Wii U, they’ve hamstrung one of their most efficient channels of exposure. Good job guys. Super smart move there.

I think I’ve achieved my goal of putting forth a convincing argument that this tact of Nintendo’s is simultaneously a damn fool idea, a dick move, and legally questionable all in one go, but there’s two more points I’d like to make.

First: This would be much less of an issue if there were any available option between claiming all of the ad revenue and none of it. I’d be the last person to argue that Nintendo deserves none of the proceeds from channels showcasing their games, but it’s impossible to defend the premise that they deserve all of it. If there were any option available for them to take an equitable cut, we’d be in an entirely different situation. However, because it is all or nothing, because they perceive themselves to be in a situation where they can either attack their fans or let people profit from their hard work without getting any of the action, they’ve goaded themselves into taking this extraordinarily stupid action.

Tangentially, there’s a smart way Nintendo could have achieved the same goal while coming out smelling like roses: Contact every Let’s Player who produces a lot of Nintendo game content, invite them to join a Nintendo Partners’ program where they are featured on Nintendo’s website in return for a small cut of the advertising profits. I suppose that some of the saltier channels might have presented a challenge, but as things stand they have gutted the goose that lays the golden eggs, and if they want a cut of the content they’re going to have a hard time of it when everyone stops producing content since it’s now a waste of time and effort for the more established channels.

Which brings me to my second point: This is a serious fucking problem with the current state of intellectual property law. The entire purpose of copyright law in the first place was to protect content creators by guaranteeing them a chance to profit from their works and thereby give them an incentive to create, but we see now it is being used to push otherwise interested people away from creating their own work. Because the system as it is now is a product of lobbying and regulatory capture by large content creators, the law has come increasingly to favor those large creators over smaller independent authors. And, because the law is on their side, they come to wield it indiscriminately: To the man with only a hammer, everything looks like a nail, and to the man with an army of lawyers every problem looks like a truck full of bootleg merchandise.

If you’re worried about protecting your IP, next time, before you flex your muscle, ask yourself:

What would LEW say?